Border Security, Asylum and Immigration Bill

Lord Harper Excerpts

Report stage
Monday 3rd November 2025 Lords Chamber

[Baroness Lister of Burtersett (Lab)]

My Lords, I speak to Amendment 57, in my name and those of other noble Lords, to whom I am grateful for their support. I am also grateful to the Refugee Migrant Children’s Consortium for all its help and to my noble friend Lady Longfield, who cannot be in her place but who has written to my noble friend the Minister in support of the amendment, drawing on her experience as a former Children’s Commissioner for England. I am grateful to my noble friend the Minister for finding the time the other week to discuss some of this with some of us. I should make clear my support for Amendment 27 and everything that has been said so far.

This amendment is focused on the age of assessment of children at the border. It would create safeguards for asylum-seeking children whose age is in dispute and would set limits on the use of scientific or technological age-estimation methods, which I believe the noble Baronesses, Lady Neuberger and Lady Hamwee, will cover. It would also provide for an annual report to Parliament.

To recap the case very briefly, as we have heard, the Home Office continues to assess incorrectly as adults a significant number of asylum-seeking children arriving in the UK based on a quick visual assessment of their appearance and demeanour. This has serious consequences—some have already been outlined—which include significant safeguarding risks when children are placed in accommodation with adults without appropriate safeguards, including the oversight of child protection professionals.

Concern has been expressed about this by the Children’s Commissioner, Ofsted, the British Association of Social Workers and, just last week, the Home Affairs Select Committee, which called it a “serious safeguarding issue”. Yet the Home Office appears to be more concerned about the potential risk of an adult masquerading as a child being housed with children even though child protection professionals will be present in those circumstances.

The Select Committee made it clear that it did not share the Home Office director-general of customer services’ confidence in the current system. In his recent inspection report, the Chief Inspector of Borders and Immigration highlighted that over a decade of concerns around the Home Office’s “perfunctory” visual age assessments remain unaddressed, and that questions about policy and practice “remain unanswered”. He noted that

“inspectors were surprised at the lack of curiosity from individual officers and corporately about decisions that were subsequently disputed and overturned, and at the view that there was no learning to take from the later assessments”

made by local authority social workers, to which the noble Baroness, Lady Brinton, referred. I welcome the fact that the Government have accepted all the chief inspector’s recommendations and that they are working to improve the data, which have been woefully poor hitherto.

I simply draw attention now to what the chief inspector described as his “overall message”, namely that the Home Office

“should look to work more closely and collaboratively with external stakeholders”,

among which he included NGOs,

“as much as possible in designing and delivering its processes”.

Thus, his first recommendation was that the Home Office should:

“Produce a stakeholder map and engagement plan that takes full account of the practical and presentational value of involving external stakeholders”,


including non-governmental organisations,

“in the development and delivery of relevant policies and best practice, including but not limited to input into and implementation of each of”

each of his other recommendations.

How does my noble friend plan to respond in practice to this recommendation? Will he agree to the establishment of a task and finish group that includes NGOs, notably members of the Refugee and Migrant Children’s Consortium, to work with officials on taking forward the chief inspector’s recommendations? I understand that such collaboration has existed in the past but was ended about 10 years ago, so it would not be setting a precedent. I know it would be warmly welcomed by stakeholders, especially if provision were made to hear from those with direct experience of age disputes. The proposal was also supported by my noble friend Lady Longfield in her letter to the Minister.

I have made it clear to my noble friend the Minister that I do not plan to push the amendment to a vote. However, I will be very disappointed if he is not able to agree to this very modest proposal, which does no more than embody the spirit of what the chief inspector has recommended.

[Lord Harper (Con)]

My Lords, I will not speak for very long on this, I hope. I also hope that the Minister does not feel that this is becoming a pattern—I am largely on the same side as him on this issue—and that I can bring a little bit of balance to the debate. Both noble Baronesses have mentioned the chief inspector. I looked carefully at his very balanced report. There are points on both sides. It is worth putting some of them on the record that the noble Baroness, Lady Lister, did not.

The chief inspector made the point that accurately assessing the age of young people is undoubtedly difficult. It has always been very difficult. It was difficult when I was the Immigration Minister between 2012 and 2014. The same debates that take place now took place then. It remains difficult. One of the reasons it is difficult is because there is an incentive in the system because, rightly, we treat children differently from and more generously than we treat adults. If you are not careful, adults game the system and say that they are children when they are not. That is a problem: first, because you are putting adults in an environment with children, which does present a child protection risk; and, secondly, it enables adults who have entered the country illegally and inappropriately to try to avoid the consequences of their actions. That brings the system into disrepute, which is not good for anyone.

The inspector makes the point that the Home Office gets some of its initial age decisions wrong and that it would be helpful if both sides accepted that. That is a point for the Minister to recognise: it is difficult and the Home Office does not always get it right. Importantly, he also said that the debate would be better if the Home Office and its critics could agree that some migrants lie about their age and that not to attempt to make some form of initial age assessment—which both noble Baronesses have criticised—risks incentivising more to do so. There is a balance to strike here.

I am pleased that these two amendments will not be pressed to a vote because I would not be able to support them. Amendment 27 seeks to put a bright-line rule in place which will strengthen the incentive for anybody to claim that they are a child because it would mean that they went automatically into the process and were treated as a child until it had been shown that they were not a child. That would make the Home Office’s job, on behalf of us all, to have a functioning immigration system even more difficult.

My concern about Amendment 57, given today’s fourth Oral Question and the pace of technology, is that subsection (3) of the proposed new clause does not specify how we should use technological methods of age estimation, including facial age estimation, saying that they must not

“be used as the sole or primary basis for determining age, or … override the presumption”

that someone is a child.

My problem is that the pace of that technology is such that I do not think we should be ruling out its use as the determining fact in statute. My understanding—I am sure there are AI experts in the House who can correct me if I am wrong—is that this technology can get somebody’s age within a few years of the true age. I accept that that is quite important when a person is on the boundary between being a child or an adult, but the point is that that is pretty accurate and who knows where that technology will have gone in a few years? If we had a very accurate method, perhaps with other things, of determining somebody’s age, I would not want there to be something in primary legislation which ruled that out, given all the complexities around that.

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[Lord Harper (Con)]

My Lords, I will briefly set out why I do not think this is a particularly helpful amendment, which I am sure the noble Baroness is not entirely surprised to hear. Despite what she said, I am not sure the amendment is entirely intended to be helpful.

This is an area in which there is a balance to strike. The noble Baroness is quite right that the Illegal Migration Act shifted the balance—a little—in favour of the Home Secretary; the balance had drifted too far in the other direction. I strongly support the need for some limits and constraint on the ability of the Home Secretary to use detention powers, but if you are not careful, those who try to frustrate the system inappropriately—people who have no right to be here—will use the rules to frustrate an attempt legitimately to remove them from the country.

I saw many cases of people who had no right to be in the United Kingdom, and who had failed on a number of occasions to stay here through the legal processes, using this as another tool. If you have strict, bright-line rules, the danger is that people game and frustrate the system. The Home Secretary does not want to detain more people than is absolutely necessary; there is a very significant cost in doing so. As she well knows, the Home Office does not have an unlimited budget, but it is necessary to have these powers.

Certainly, the powers that were in place before the provision the noble Baroness, Lady Jones, is trying to repeal needed strengthening. As I said, this moves things in the direction of the Home Secretary, but as with all the Home Secretary’s powers, she has to exercise them in a reasonable and lawful manner, and all the decisions she takes are challengeable by judicial review.

The Illegal Migration Act still refers to whether the detention is “reasonably necessary”. It still has that test, so the Home Secretary has to exercise that judgment. If somebody feels that the Home Secretary has got that judgment wrong, it is still open to them to challenge it. However, I agree with the noble Baroness, Lady Jones, that the balance has shifted in favour of the Home Secretary.

I come back to what I said in the earlier group: there is a balance to strike here. Much of the debate so far is coming from one particular angle. I do not criticise the noble Baroness for doing it, but the other side of the argument needs to be put, so the House can hear a more balanced argument. We need a firm system which allows people to come to and stay in the United Kingdom if they are following our rules or have a legitimate asylum claim; equally importantly, where they do not, they should not be able to use rules and regulations that are there to protect people, in order to frustrate the legitimate exercise of that power.

To all those who want an asylum system, or one that allows people to come here legitimately, I urge them to be careful what they wish for, because we are getting to the point where the public are losing patience. Ministers are ultimately accountable both to the House of Commons and to the House of Lords, but if the public do not feel that Ministers are accountable, or if they feel that they do not have the powers to deliver a system the public want to see, public belief and confidence in the system will disappear, and that would be very dangerous. Those who want a more liberal system would rue the day that that happened.

Therefore, having that balance is necessary. The changes made in the Illegal Migration Act to the powers on detention moved in the right direction. The fact that the Government, despite doing a pretty wholesale removal of the powers in that Act, have not removed this one suggests that Ministers think that shift in the balance was sensible. I therefore hope that it remains in place. Regretfully, if the noble Baroness presses her amendment to a vote, I will not be able to support it. I hope she understands why, and I suspect it will not be a surprise to her to learn that I am unable to support it.

[Baroness Hamwee (LD)]

My Lords, we should of course be aware of public feeling, but we should also not inflame it. We need to be careful with that. The noble Baroness’s Amendment 32 seeks to leave out Clause 41(17), which states that the amendments made by most of the subsections in that clause

“are to be treated as always having had effect”.

We should be very wary of the retrospectivity contained in them. The Constitution Committee, of which I am a member, is about to finalise, I hope, a report on the rule of law, and we point to retrospectivity, or retroactivity—I am never sure whether there is a difference—as threatening the rule of law, along with legal certainty and so on. I am therefore glad that the noble Baroness tabled this amendment.

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[Baroness Hamwee (LD)]

My Lords, would the noble and learned Baroness agree that it could also be described as extreme that, as per Amendment 72, a deportation order would not be subject to appeal under the two Acts cited, or any other enactment, and that:

“A deportation order made under this section is final and not liable to be set aside in any court”?

[Lord Harper (Con)]

My Lords, I support both these amendments. It is sensible that we set a presumption that those who are here effectively as our guests have to follow the rules. Insisting that they be deported if they commit crimes strikes me as very sensible. Putting it in statute is important. We have done this before in the past, when we were having problems with courts interpreting very broadly some of the human rights legislation around people’s right to a family life. We made some clear rules and put them in primary legislation in the Immigration Act 2014, and that largely—not entirely—dealt with those problems. There was a rule in there that if you were given a prison sentence of a certain length, you had to be deported. This is a logical extension of that. It would strengthen the Government’s hand in a number of the cases that my noble friends Lord Jackson and Lord Cameron set out, where Ministers sound as frustrated as the rest of us that they are not able to deport people, or, if they are, only after a very lengthy legal process.

To pick up the point made by the noble Baroness, Lady Hamwee, about challenging the deportation, my noble friend’s amendment is drafted as such because the person concerned would have had the opportunity under the criminal law to challenge his sentence if there was some issue with the legal case, but, having been convicted of the criminal offence concerned, it should follow that they are then deported. You should not get a second bite of the cherry to have, in effect, another appeal when you have already had the chance to appeal against the sentence in the first place.

The other benefit of these amendments is that, although initially they would indeed be challenging for the Government for the reasons that the noble and learned Baroness, Lady Butler-Sloss, set out, including around where you can send people back to, the proposal would force the Government to do two things. First, it would force them to engage with some of the countries where returning people is more challenging. You can do that by sending people back before they finish serving their sentence—you have a prisoner transfer agreement, where they can go back to their home country and continue serving the sentence in that country, before their release from prison. That is the preferable outcome, where they still have a measure of justice.

The second thing the proposal would do is force the Government to confront the cases that the noble and learned Baroness, Lady Butler-Sloss, set out. I accept that they are challenging, but it cannot be right that, because somebody is from a certain country, they can come to the United Kingdom, commit any level of criminality and, once they have finished their prison sentence, we cannot get rid of them.

We should force the Government to confront two tests. The first is to ask whether someone who comes from a country that we do not deem safe should forfeit the right to not be sent back to it by their conduct.

[Baroness Butler-Sloss (CB)]

My Lords—

[Lord Harper (Con)]

I will address the second test after I have given way to the noble and learned Baroness.

[Baroness Butler-Sloss (CB)]

What about careless driving? The noble Lord is dealing with people who have been convicted and sentenced to imprisonment, but the wording of this amendment would include careless driving.

[Lord Harper (Con)]

I suggest that careless driving is not a trivial offence. When I was Immigration Minister, I dealt with a father who had lost his child because of someone’s poor driving. We were struggling to remove that person from the country for a similar reason to that which the noble Baroness, Lady Hoey, set out: they were an EU national, and there was a stricter test about whether you could remove them. I have to say that that father who had lost his child thought that that driving offence was really serious, so I would not trivialise it at all.

The second test is that, if we cannot deport someone to the country from which they came, we should look at whether there is an opportunity, as we set out in our Rwanda policies, to deport them to another safe country. It is very clear that the British people do not want serious criminals who have come to this country staying here. We can have a debate about the detail of this, but the principle is very clear. When the Minister replies, I hope that he will address the principle of whether he thinks that people in the circumstances set out by my two noble friends should be able to stay here.

[Lord Sentamu (CB)]

I want to follow the argument that the noble and learned Baroness tried to raise. Looking at the wording, I am afraid that the process would still be very long. The proposed new clause in Amendment 34 states:

“Where a person to whom this subsection applies is convicted of an offence, the court must sentence the person to deportation from the United Kingdom”.


Let us say that this person has committed grievous bodily harm and has been tried, and the jury say that he is guilty and so he is found guilty of the crime that is committed. The noble Lord is saying that, immediately, that same court must sentence this person to deportation. But the person who has been convicted in this country has a right of appeal. They may challenge the way the jury was selected, the way everything happened and the sentence itself, saying that being sent back to the very dangerous place that they left is condemning them to death. Should the process of appeal still happen, what the noble Lord is saying would not happen immediately.

[Lord Harper (Con)]

That was quite a lengthy intervention, with a number of points. The case raised by the noble and right reverend Lord about a country that we would normally deem not safe is a perfectly reasonable one. But, as I said, my challenge back is this. Is there any offence that people who come from certain countries to which we would not normally return them can commit that is of a level of seriousness that we think should make them immune to being sent back to that country? I believe that there are certain offences that people commit for which it is reasonable that they forfeit the right to stay in the United Kingdom. That is a perfectly reasonable case.

It may be that the wording in these amendments is not entirely perfect, but the argument that we are having is whether, if you come to this country and you commit a serious sexual offence, for example—as in my noble friend’s example—or you murder or rape somebody, you should be able to stay here for ever because the country from which you came is not ideal and we would not normally send you back to it. That is a debate worth having. I think the general public would take a much more robust position in those cases than many Members of your Lordships’ House would feel comfortable with.

Finally, I challenge the Minister, as my noble friend Lord Jackson did, having got in before me, to respond to the points in the debate we had earlier about what the Government will do to bring forward amendments or changes to how they interpret human rights legislation to give them a better chance—I am assuming the Government will not accept these amendments—of removing people who we know the Government would like to get rid of. In the case that my noble friend Lord Jackson set out, it sounded to me as though Ministers were very frustrated—as frustrated as he is. I look forward to the Minister’s reply.

[Lord Deben (Con)]

My Lords, I do not think I could be accused of being extreme on these issues, and therefore I want to apply a very serious matter here. This is an issue that most disturbs people in Britain. There are those of us who are determined to protect a multiracial society, who strongly believe in people living with each other and who are proud to have their grandchildren educated with a wide range of different backgrounds in schools that care about that. We are very concerned when we do not deport people who have been guilty of offences, because it is felt by the majority of people in Britain not to be sensible to keep in this country people who have committed offences.